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Misuse of Maqasid al-Shariah (5)

The old and the new Shafi’i fiqh by Abdullah b. Saleh al-Ujayri (pgs. 478 – 487)

A citation used by the modernist approaches in this context pertains to the changes in the school of Imam al-Shafi’i’. He had two common fiqh; the first is known as the ‘old’ and the second is called the ‘new’. The first was in the time of his residence in Iraq and the second after coming to Egypt. They claim that the changes in his fiqh relate to the changes in the nature of the environment and the effects of the time and place; the environment affects the nature of the fiqh – appropriate Shariah for the old era does not necessarily fit our life today. As we can see in the Shafi’i school, each environment (place or time) has its appropriate fiqh because (as we have seen) the Iraqis had their own fiqh while the Egyptians had their own.

Response to this problem is as follows:

Firstly, to say that there is an old and a new Shafi’i fiqh is only a terminological saying; the actual meaning refers to the changes that took place in Imam al-Shafi’i’s fiqhi efforts. The old school was from the beginning of his issuing verdict till 199 AH, most of which was in Iraq with some of it in Makkah as well. During this period, he wrote two of his books al-Hujja and the Risala (the old edition) along with much usuli and fiqhi Ijtihadaat.

By the end of year 199 AH, al-Shafi’i traveled to Egypt and stayed there until his death in 204 AH. During this period, he amended a number of his Ijtihadaat (and fatawa) and looked back at his books to review and edit them. He had several students like al-Buiti, al-Muzni, al-Rabee’ and others who carried forward his fiqh. During this period, the most important books from him were al-Umm and the Risala (the new edition) along with others and this period is what is being referred to as the new Shafi’i school.

It is very obvious that al-Shafi’i edited and reviewed his work considerably while he was in Egypt. Below is a statement from his student, Imam Ahmad, when he was asked:

What do you think of the books of al-Shafi’i? Which ones do you like more? Those books with the Iraqis or those with the Egyptians? He answered: You should take the Egyptian books since he wrote them in Iraq but did not review them; however, he did so after coming to Egypt.[1]

Secondly, it is important to look at the reasons of this change; this clarifies the big issue created by those who take this case as a claim that Shariah changes according to the change in environment (place or time). These reasons are included in the following matters:

1) Gaining of more knowledge and understanding by reading more about the Sunan and the narrations that he had not heard of before, especially in his trip to Makkah which took place before his travel to Egypt. This is why some say that he started his fiqh from Makkah until he resided in Egypt.

2) His dependency on new Ijtihadaat, new qiyas, and further deeper look into evidences of the Shariah made him think of the likelihood of second opinions that are dominant or superior. One of the phrases that he said that meant that some of his fiqh was based on some unknown evidences; he says:

3) Disagreements in the fiqh of Shariah, or cases that were considered as verdict, were needed for a necessity or some need according to the time; hence, by the change of the custom, there will be some form of a new fiqh that fits these customary situations. There is essentially a major difference between those who neglect the rules of Shariah completely and those who care about it and look deeply at it to find something that fit the context of the time.

Thirdly, as we have clarified, Imam Shafi’i did not change his opinions in some cases according to the circumstantial changes and the needs of the people and the following examples further elaborate this point:

He did not allow using his fiqh from the days of Iraq as he said in the previous phrase [Anybody who narrates my old fiqh is wrong]. Imam al-Bayhaqi discussed this and clarified Imam Shafi’i’s stance:

He ordered us to read these books, then he ordered us to dispose off what contradicted his Ijtihadaat, and sometimes he leaves it and considers what is mentioned in another context.[3]

Therefore, we see that if his intention was to dispose off Shariah and its rules, then he would not be careful about correcting the old school; this is not what he did. This implies that the changes that he did were simply due to new fiqhi insights; this is how the Shafi’i jurists and scholars understood, such as Imam al-Nawawi who said:

Each matter which has two opinions from al-Shafi’i, new and old; the new is what is correct and what we have to take into account because the old is not correct which he (later) corrected. A group of our companions excluded about twenty of his opinions.[4]

It is not for the Mufti or for the adherents of the school of Shafi’i in the question of the two sides, that he should do what he wants without looking (at both), but he has to do the latter i.e. recent one – that is related to the new school.[5]

The Imams of the Shafi’i school knew that Imam Shafi’i changed his fiqhi opinions according to religious reasons and he did so only if there were other more apparent and authentic evidences for another opinion. They followed him and did the same; they did not relate the old school to him since he had already corrected it with the new one. Had he been changing the rulings according to the time and place, then both schools would have been taken into account in Imam Shafi’i’s considerations but they did not do so. They (i.e. his students) were the closest to al-Shafi’i, his school, his nature, and the reasons for changing his opinions; if they saw that that he did so to fit the people’s need and the situational benefit, then they would have done the same or used the same approach.

Imam Nawawi, while discussing this matter, commented on Imam al-Juwayni’s statement which he mentioned in his book al-Jalil (Nihayat al-Matlab 29/1):

Most of the scholars confirm that the old statements are not considered as a part of al Shafi’i’s school as he contradicted them in the new school; therefore, what he corrected cannot be taken as reference.

If we see someone giving a fatwa according to the old school, we say that they made that Ijtihad according to an evidence (of their own); their fatwa does not imply its relation to al-Shafi’i and none of the previous scholars said so. Abu Amr says: choosing the old school means choosing a school that is not related to al-Shafi’i, it is related to the efforts of the mufti or the scholar who gives the judgment.[6]

This type of tarjih (priority) in Shafi’i school has been well-known to the followers of this school and they used it to seek correct answers with evidences. Al-Nawawi commented on this feature of Shafi’i school stating:

He strove hard to make sure of the Hadith and to follow the Sunnah; he pondered over the meanings deeply and precisely. In Iraq, he was called Nasir al-Hadith by many of the scholars. The scholars of the Shafi’i school came to be known as the ‘companions of Hadith’ (ashab al Hadith). Imam Abi Bakr Muhammad b. Abi-Ishaq b. Khuzaimah, known as Imam of Imams (Aimmah) – who was one of the memorizers of Hadiths and one of the best in knowledge of the Sunnah – was asked: Do you know any Sahih Sunnah that Shafi’i did not mention in his books? He responded: No. Even though al-Shafi’i took into account that absolute knowledge – knowing everything – is impossible for the humans, he always looked for the authentic from the Hadiths and left his opinion if it contradicted the apparent text. All of our friends (i.e. the other scholars) have been doing the same and following the same approach in many matters such as tathweeb (saying as-salaatu khayra min an-nawm twice) in morning prayer and the issue of condition of al-Tahallul[7] in Hajj if there were an excuse.[8]

Shafi’i Imams have confirmed that adhering to and following the old school is not allowed, even if the follower was an Iraqi. Therefore, would it be correct to say that the Shafi’i school changed according to the needs or would it be better to say that the change pertained to another evidence by changing a wrong opinion to a correct one?

They (i.e. Shafi’i scholars) also confirmed that the Shafi’i school also includes that which didn’t change from the Iraqi/old school. This implies that he always sought to match the correct opinion and not seek the benefit and need of place and time. We can see that it is only a fiqhi approach that seeks to find the correct choice between the other choices and opinions. Al-Shafi’i also confirmed many of his old books as al-Bayhaqi mentioned in his book (Manaaqib al-Shafi’i)[9]; he also edited some of them as mentioned earlier.

It must be understood that when they say that the old is not related to Shafi’i school they mean the unedited old text that is contrary to the new one. What is acceptable is the old text that does not differ from the new or is unaddressed in the new; this is the mazhab of Shafi’i and his belief. [10]

There was an obvious disagreement between the Shafi’i Imams in historicizing the old and the new school; some said that the new started when he was in Iraq while others say that it started from his arrival in Egypt while yet others said that it started from his arrival in Makkah before going to Egypt. This disagreement confirms that the change in surrounding factors (place or time) was not the main factor of change in fiqhi matters but the main factor was the increment of the knowledge and the new evidences that he has obtained specifically before going to Egypt.

By looking deeply at the Shafi’i schools, the new and the old, we see a lot of matters that are not related at all to the change in place or time but that they were simply because of the Imam’s changed vision and efforts at the evidences to find the correct opinion. For example, in his book al-Umm, in the context of ablution, and continuity of ablution, he says:

I like to continue ablution without putting a halt between it and you shouldn’t separate it because the Prophet (ﷺ) did it continuously. The Muslims did tawaf (circumambulation around the Ka’bah), rami (walking fast in the first three cycles), stoning the devil, and similar acts in succession. One may stop if there were an excuse and an excuse is like having a demolition, torrent, fire burning and so on, and when it ends you can complete the ablution. Ibn al-Rabee’ said: Shafi’i changed this opinion and said: one has to restart the prayer if he was bleeding.[11]

[Al-Rabee said]: Then al-Shafi’i retracted from this opinion, and he said that he should start the prayer if he comes out of an abomination. [Al-Shafi’i] said: If he turns away from bleeding or another thing before his prayer begins, he begins the prayer. [Al-Rabee’ said]: Al-Shafi’i retracted from this opinion and said: If he turns his face from praying regularly, he should offer the prayer if he comes out of bleeding and others.

What is the relation between the order of prayer and change in environment whether it is Iraq or Egypt? There are several such examples such as the tathweeb in Fajr prayer, impurity in the large quantity of water, reading a Surah in the last two Rakaat, touching the Mahram, praying Isha early, the Maghrib time, the single person who wants to recite thanaa in the prayer, saying Ameen loudly in the loud prayers (Fajr, Maghrib, and Isha), walking in front of the prayer of the one who hasn’t put a barrier and so on.[12] These matters and others have no relation to the changing of the environment to new circumstances but it is because of analyzing new evidences to arrive at the most correct opinion.

Imam Shafi’i is like other Imams who tried hard to find correct evidences; many situations prove so. He once said:

Al-Humaidi said: Al-Shafi’i narrated a Hadith to which I said: do you take this Hadith? He answered: Do you see me coming out of a church or upon a Zunar (religious band/waist cloth of a group) that when I listen to a Hadith by the Prophet (ﷺ) that I don’t take it?[14]

I heard Al Shafi’i answering a person who asked about a Hadith of the Prophet (ﷺ) and then asked him (al-Shafi’i): Do you take this hadith and confirm it? I saw al-Shafi’i trembling and said: Which land can carry me and which sky can shadow me if I heard a Hadith by the Prophet (ﷺ) and didn’t affirm it? Definitely yes, (I choose it) over my hearing and sight![15]

I heard al-Shafi’i mentioning a Hadith when somebody asked him: Do you take this Hadith O Aba Abdillah? He said: Subhanallah! I narrate a Hadith from the Prophet (ﷺ) and then I don’t take it? If I did such, then know that I have become insane.[16]

[4] Al-Majmu’a Sharh al-Muhazab 66/1. This exception of the problems was because of the strength of their evidences as we clarified in many references like al-Majmu’a and others; we will see the Nawawi clarifying this point soon.

[7]From the translator: In Arabic, Ihlaal means raising one’s voice upon seeing the new moon, and it is used to describe any person who raises or lowers his voice. In the context of Hajj, it refers to the pilgrim who enters the state of Ihraam and raises his voice with Talbiyah. It also applies to the person who raises his voice with Talbiyah in ‘Umrah. Muhall refers to the time and place in which pilgrims enter the state of Ihraam.

Technically speaking, Ihlaal is making Talbiyah for Hajj or ‘Umrah upon entering the state of Ihaam. In this sense, it has the same meaning of Ihraam because the pilgrim raises his voice with Talbiyah. ‘Aa’ishah (رضي الله عنها) said: “We accompanied the Prophet (ﷺ) in the Farewell Hajj; some of us made Ihlaal with ‘Umrah and others made Ihlaal with Hajj.” In the same Hadeeth, the Prophet (ﷺ) said: “Whoever made Ihlaal with Hajj should complete it.”